Itskos v The Nominal Defendant (No 2) [2021] NSWDC 485

Itskos v The Nominal Defendant (No 2) [2021] NSWDC 485

An order for indemnity costs is appropriate from 8 September 2020, the date of the second offer of compromise by the plaintiff; prior to that, costs are to be paid at 90% on an ordinary basis, reflecting the plaintiff’s contributory negligence. Adjustment for contributory negligence in costs is appropriate where partial success mirrors partial liability determination.

Jurisdiction
Australia
Judgment Date
22 September 2021
Procedural Posture
Civil / Application for Variation of Costs Order After Judgment
Outcome
Orders varied regarding costs; defendant to pay 90% of plaintiff's costs on an ordinary basis up to 7 September 2020, indemnity basis thereafter; defendant to pay plaintiff's costs of this motion.
Legal Topics
['contributory Negligence' 'offers of Compromise' 'ordinary and Indemnity Costs' 'variation of Costs Order']
['costs'] ['contributory Negligence' 'offers of Compromise' 'ordinary and Indemnity Costs' 'variation of Costs Order']

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Procedural Posture

Civil / Application for Variation of Costs Order After Judgment

Legal Issues

  1. 1 ['Whether the plaintiff is entitled to indemnity costs following offers of compromise under r 42.14 of the Uniform Civil Procedure Rules 2005' 'Whether costs should be reduced to reflect contributory negligence']

Ratio Decidendi

An order for indemnity costs is appropriate from 8 September 2020, the date of the second offer of compromise by the plaintiff; prior to that, costs are to be paid at 90% on an ordinary basis, reflecting the plaintiff’s contributory negligence. Adjustment for contributory negligence in costs is appropriate where partial success mirrors partial liability determination.

Court Disposition

Orders varied regarding costs; defendant to pay 90% of plaintiff's costs on an ordinary basis up to 7 September 2020, indemnity basis thereafter; defendant to pay plaintiff's costs of this motion.

Orders

  • ["Order 2 made on 17 June 2021 is varied to: 'The defendant is to pay 90% of the plaintiff's costs as assessed or agreed on an ordinary basis up to 7 September 2020 and thereafter on an indemnity basis.'" "The defendant pay the plaintiff's costs of the motion as assessed or agreed."]